Preemption Guide

According to one article, preemption concerns "whether a published article or opinion so completely and competently discusses the author's topic that the author cannot significantly add to that discussion." (1) Preemption is a complex topic, and it is unlikely any single approach will work for all topics. In some ways, the explosion of information sources--while a tremendous boon to locating information to support a legal argument--has made preemption more challenging. What follows are some basic guidelines of how to approach preemption. In general, the earlier you perform your preemption check, the sooner you will know what the potential preemption problems are.

What sorts of concerns should you have as an author? In part it depends on what you are writing. If it is a paper for a course, you have a different set of considerations (and a different timeline in mind) than you would if writing a law review article. Why the difference? Because they have different purposes and audiences.

Your first concern should be to ensure that no one else has written the very paper you are considering. You do not want to devote time or effort to a topic that has already been examined exhaustively. If you are not going to add anything to the scholarly literature on a topic, chose another topic.

Second, you do not want to devote time or effort to a topic that may be resolved before you finish work. Imagine how frustrating it might be to work on a matter before the Supreme Court only to have the Court decide it before you finish your paper. Taking a longer view, even if you finish your paper before the Court rules, your paper will have passed its "use by" date once it does. This may not be a problem for a seminar paper; it almost guarantees irrelevance for a law review article--it will not be cited. "[O]nce the Court acts, your article will be largely ignored, since scholars and lawyers will be looking for articles that consider the new decision, rather than articles that predate it." (2) For this reason, you should be more cautious using a circuit split as a topic for a law review article than as a topic for a seminar paper.

The following sections provide some guidelines on performing a preemption check. In addition to ensuring that your topic is not preempted, the resources listed may help you to create a stronger, better-supported paper.

Ask faculty to help you identify topics that are timely. They can not do your work for you, but they are likely to know the hot topics and the scholars working in the field.

Check scholarly community resources that feature recent developments, alerts, pre-publication drafts, working papers, and information available in scholarly legal blogs. The library subscribes to an alert service called the Current Index to Legal Periodicals(CILP), which lists the most recent law review articles, organized by topic. We also have access to the scholarship databases Social Science Research Network(SSRN) and bepress, which provide scholars an opportunity to post their drafts and working papers prior to formal print publication. Both SSRN and bepress feature substantial sections devoted to legal scholarship. These are among the best resources to see what people are working on that may not yet have been formally published (the delay between the time an author submits a manuscript to a law review and the time the article sees the light of day and is picked up by indexing services can be substantial). An index to legal blogs is available at: http://www.abajournal.com/blawgs and one notable example of a prominent network of scholarly legal blogs is the Law Professor Blogs

Use full-text sources like Lexis, Westlaw, and HeinOnline (full-text, though generally missing the last one to four years): You can find articles that consider or discuss your topic even if the article is not centrally about your topic.

Use "indexed" sources that take advantage of subject classifications in addition to full-text sources. Most preemption guides indicate that a complete preemption search will use both full-text and indexed sources.

Subject classifications are a type of "controlled vocabulary." "Controlled vocabulary" is library-talk for the process of assigning index and subject terms to works. While our indexes LegalTrac and Index to Legal Periodicals and Books are not full-text databases (instead they rely on creating links to full-text sources), both feature subject searching and allow you to click on hypertext subject headings to see all the articles on a given subject, regardless of what name the author gives to the subject in the title or in the text. For example, an indexer might use the term psychology to apply to articles considering the effects of emotions, personality, mental processes, etc. Articles about the psychology of judges might refer to judges, the judiciary, or judging. An index would likely suggest one controlled term, say judges--psychology.Using the standardized descriptions in indexes is particularly important given the prevalence of puns and creative language in the titles of journal articles.

In searching for full-text articles on Lexis, you can achieve some of the benefits of controlled vocabulary by using the search segment "summary," which restricts your search to a paragraph that Lexis editors believe best summarizes the full scope of an article. Similarly, in searching NUcat or WorldCat for books, use subject classifications as a tool for finding books that may not use your search terms in their titles.

Whether you are using a full-text source or an indexed source, be sure to develop a list of synonyms and related terms to ensure that you are not missing an important article because it uses different terminology than you do.

Search the large databases whenever possible. Westlaw and Lexis full-text periodicals databases cover a large portion of the legal journals, but they are not comprehensive. Do not assume that if you find nothing in these databases that there is nothing out there. Use LegalTrac (more journals indexed and coverage back to 1980) and the Index to Legal Periodicals and Books (not as many journals as LegalTrac but coverage beginning 1918 if you use the "Retro" database).

Consider the full range of sources that might partially preempt your work, including books, articles, working papers, dissertations, Web pages, and articles in the American Law Reports (usually called ALR; available on Lexis and Westlaw). Be sure that you are searching resources that will cover all appropriate publishing avenues.

In searching for books, be sure to use both NUcat (the Northwestern University libraries catalog) and WorldCat, the international library catalog database containing over 85 million bibliographic records.

Be sure to update your research and to go back in time if appropriate.

Update: Remember that new material will be appearing all the time that might be preemptive, and might even cause you to have to reconsider or adjust your research. This is especially true of the hot topics that many people want to write about. Save records of your searches so you can run them again later without having to reformulate them.

Subscribe to clipping services on Lexis and Westlaw to update your searches; check Current Index to Legal Periodicals regularly; and check SSRN and bepress regularly or sign up for e-mail alerts. Many advisors suggest that a complete preemption search would use both LegalTrac and its analog the Legal Resource Index, available on both Lexis and Westlaw. We have not attempted to cross-check these to confirm that both need be searched, but the Legal Resource Index would be a good way to use a Lexis or Westlaw clipping service for updating your LegalTrac search for current articles.

"Backdate" if appropriate. Remember that Lexis and Westlaw full-text journals go back no further than the mid-80s (and even then not for all journals). Similarly, LegalTrac only goes back to 1980. The Index to Legal Periodicals and Books indexes fewer journals than LegalTrac but goes back to 1918 if you use the "Retro" database (see "Database Selection Area" near the top of the page to select "Retro.") (3) Use HeinOnline to search the full-text of law reviews back to their very first issues (as far back as the mid-nineteenth century).

With each resource and search that you use, consider what is left out. What is the breadth of the database you are using? What are its limitations? With full-text article searches, you are missing out on the number of sources. With abstract searches, you may be getting plenty of sources, but you will only find articles that are centrally about your topic. Other articles may discuss your topic at length, but only be discovered in a full-text search.

Don't panic if you find something on your topic. Reflect on how it can enrich your treatment of the subject, and ask yourself what your piece can add to the debate.